Criminal Procedure Ombudsman as a Substitute for the Exclusionary Rule: A Proposal

Abstract:

The problem of the exclusionary rule is well known to all those familiar with the administration of criminal justice in the United States today. The problem has at least three aspects. First, the exclusionary rule (that is, the rule which requires exclusion of trustworthy evidence seized in violation of the fourth, fifth; sixth, and fourteenth amendments of the United States Constitution) does, in some instances, permit guilty persons to escape punishment because the police have violated the defendant's constitutional rights. Second, police lawlessness has not been deterred by the existence of the exclusionary rule, especially in those instances in which the police have pursued goals other than that of prosecution of criminal defendants. Third, the exclusionary rule has provided no remedy for the innocent person, who, presumably, is never brought to trial and thus never has an opportunity to invoke the exclusionary rule.